Reining in the Zoning Board

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For years, community boards and other civic groups have decried the rampant use of zoning variances to allow for large-scale real estate development projects that would otherwise be illegal. Now they may have too much of a good thing: two very different proposals to fix the Board of Standards and Appeals (BSA).

In April, Councilmember Tony Avella formally introduced a plan to the City Council Land Use Committee that would give the council the power to review all of the BSA's decisions. Meanwhile, the Municipal Art Society began looking for a council member to sponsor reform ideas that the group introduced in March, which involve changing the operations of the BSA itself.

While these two concepts are not in direct conflict, as both Avella and the Society hasten to point out, neither has endorsed each other's plans.

The BSA's main job is to review requests from landowners for variances, permits to build contrary to the zoning code. But many observers, including Avella and the Municipal Art Society, say the board is too permissive.

According to a two-year study conducted by the Society, 93 percent of the variance applications the BSA ruled on between 2001 and 2002 were approved. “It's ridiculous,” says Avella. “The BSA is absolutely a power unto itself. They are out of control.” He and others agree that the danger is that the character of entire neighborhoods is being transformed piecemeal rather than by plan–and without the community input required by a formal rezoning.

The Municipal Art Society report contains several recommendations for reform of the BSA: strengthen the guidelines for reviewing and granting variances; put finance and real estate experts on the board; and improve communication between the board and City Planning. “These immediate legislative changes would vastly improve the process,” says lead author Christopher Rizzo.

Avella isn't so sure. The problem, he asserts, is not with the guidelines themselves, but with the BSA's casual approach to enforcing them. “The real solution here is oversight,” he says. He has proposed giving the City Council what amounts to appellate review over the BSA's decisions to help keep the board cognizant of community concerns.

Not everyone supports his plan. Sylvia Deutsch, former chair of the BSA and the City Planning Commission, says council review would introduce provincial politics into variance decisions without really addressing the problems: “If there is something wrong with the BSA, then one should look at its marching orders, rather than imposing another layer of review.”

Some even consider the idea a threat to the separation of powers. “It's not proper for a legislative body to have the authority to review a quasi-judicial body,” says Sheldon Lobel, a veteran land-use lawyer who represents many applicants for the zoning variances. He argues that council members already get to review mayoral appointments to the BSA and should not also get to review their independent decisions.

Until Speaker Gifford Miller weighs in on this proposal, its future remains uncertain. And even if the Speaker is supportive, Avella's plan will face a long battle because it requires a change to the city charter that must be approved by voters. The Society's proposals, because they are legislative, could be enacted by a simple vote of the council. –Elizabeth Cady Brown

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